Christie Blatchford: Judge rebukes police for putting ‘demands of occupiers’ over other Canadians

More than 10 years after the oft-violent native occupation of the Douglas Creek Estates housing site began in Caledonia, Ont., a judge has given teeth to the claim that the Ontario Provincial Police engaged in “two-tiered” law enforcement that favoured occupiers over non-native residents.

“The OPP acted in accordance with a framework to put the demands of the occupiers ahead of the rights of other Canadian citizens,” Ontario Superior Court Judge Kim Carpenter-Gunn said in part last month.

Her decision was given orally from the bench on Sept. 22; Postmedia has obtained a transcript.

The case was a civil lawsuit against the OPP and six of its members filed by Randy Fleming, a 55-year-old retired steelworker and long-time resident of the picturesque small town south of Hamilton.

On May 24, 2009, Fleming had attempted to walk peacefully, carrying a Canadian flag, up the main Caledonia street to a so-called “flag rally,” the first time since the occupation had begun that the police were going to allow the maple leaf to be raised anywhere near Douglas Creek Estates — often referred to as DCE — lest the mere sight of it inflame the occupiers.

But as he approached the entrance to DCE, three OPP vans drove past him, turned around and then drove toward him, forcing him to clamber into a ditch and then up to the higher ground of the occupied site, whereupon he was forcibly taken to the ground by a half-dozen officers, his left elbow and nerves permanently injured, and then arrested.

The judge came down strongly on Fleming’s side — awarding him a total of almost $300,000 in general and special damages and legal costs, proclaiming him a credible witness who had handled both the chronic pain and simmering rage that were the residue of his arrest with stoic grace and finding the OPP had been “very heavy-handed” and that several officers were evasive or not believable in their evidence.

Carpenter-Gunn found that Fleming had done nothing wrong, let alone illegal, and that the police had breached his Charter and common-law rights “in order to appease certain unidentified Aboriginal individuals who may have been involved in the occupation of DCE.”

In the end, she said, the police falsely arrested and unlawfully imprisoned Fleming.

All he’d done, she said, “was to stand peacefully and alone with the Canadian flag, on a piece of public land in Canada, potentially angering a group of people (the occupiers) who were about 100 metres away.”

Ironically, the judge said, there were only 20 or so native occupiers at the main gate that day, and only about half of them even noticed Fleming’s approach and moved towards him. None of them was armed, and none carried weapons.

And though two officers testified that if “there was a threat of violence at all, it was coming from the occupiers,” the judge said unequivocally if the police hadn’t interfered with Fleming’s quiet walk, “he would simply have passed in front of DCE and moved onto the flag-raising event.”

In other words, she said, it was the conduct of the police in “driving directly” at Fleming that forced him to leave the shoulder of the road and “walk a few feet onto what may have been DCE land.”

If the decision was a tremendous personal victory for the tenacious Fleming and his lawyer Michael Bordin, it also offered in microcosm a vindication for many in Caledonia.

From the moment the occupation began on Feb. 28, 2006, when a handful of protesters from the nearby Six Nations reserve walked onto DCE, the OPP policed as they had never policed before: Occupiers broke the law, sometimes violently right under police noses, with arrests, when they were made, not made contemporaneously but weeks or months later.

Often, even in the face of egregious law-breaking, the OPP simply did nothing.

But non-native citizens who objected — or God forbid, took to the streets to protest the uneven treatment and their abandonment by the state — were treated by the OPP as instigators, and arrested, as Fleming was, for daring to assert their rights to freedom of speech and expression.

Roads were blocked, bridges and cars burned, the residents who lived on roads around DCE at one point actually issued “passports” by masked occupiers and forced to show them to enter their property. A Hydro One transformer station was vandalized and set on fire, knocking out power to almost 8,000 people in the area.

And when the OPP belatedly deigned to enforce a court order to remove the occupiers, they were driven off the site by a mob of natives, many armed with bats, axes, shoves and the like, with their tails between their legs.

It was an astonishing decimation of the rule of law that went on for years, with the OPP and Ontario government both denying the truth of what citizens saw daily with their own eyes.

Even Fleming’s arrest was a joke, with the OPP saying they’d arrested him to prevent a breach of the peace or because he’d breached the peace, but actually charging him with obstructing a police officer.

Fleming appeared in court 12 times to defend himself against the charge (those legal fees of almost $13,000 were part of the damages the judge awarded) only to see the Crown withdraw the charges 19 months later.

The flag rally on the day when Fleming was arrested was, he testified, a response to the fact that until that date, “no one had been allowed to put up a Canadian flag on Argyle Street,” though the flag of the Mohawk Warriors flew all that time on DCE.

The Canadian flag meant something to Fleming: He’d been told stories by his father and grandparents about the First and Second World Wars and, the judge found, he was “sincere regarding his respect for the flag.”

As Christine McHale, a veteran in Caledonia’s fight for fair policing, said this week, “At least Randy and the rest of our little group can hold our heads high, knowing we did the right thing.”

Ontarians have long known that the provincial Liberals, under then-premier Dalton McGuinty, sold out the interests of law-abiding citizens in the community of Caledonia, rather than be forced to confront lawlessness among members of the aboriginal community. And now, a judge has said so.

The ruling dates back to the 2009 occupation by aboriginal protesters of a parcel of land outside town that was slated for development. They opposed development of the land, on grounds that it properly belonged to the nearby Six Nations reserve. The occupation of the would-be development site became a flashpoint of tension; aboriginal protesters engaged in acts of sabotage, intimidation and sometimes outright violence against locals and, occasionally, members of the Ontario Provincial Police (OPP), who had responsibility for policing the crisis.

The occupation and standoff was a bitterly unpleasant experience. But it was hardly unprecedented — these protests happen. What was new was the extent to which the OPP, no doubt under orders from the Ontario government, utterly abandoned their duty. The police exist only to uphold the law neutrally and fairly. In Caledonia, they didn’t even try.

This conclusion, obvious to locals and most Canadians who observed the crisis from afar, was recently confirmed by a ruling in the Ontario Superior Court. Justice Kim Carpenter-Gunn found in favour of Randy Fleming, a man who sustained permanent injuries when he was tackled by OPP officers and arrested while waving a Canadian flag near the protest site. Charged with obstructing an officer — a preposterous charge, since he was minding his own business until engaged by police — Fleming ultimately had the charges against him dropped. But he sued the OPP and, last month, Justice Carpenter-Gunn ruled in his favour, awarding him nearly $300,000.

The ruling is obviously a huge victory for Fleming, who was behaving reasonably, and entirely legally, when he was falsely arrested and unlawfully imprisoned by the OPP. But it is also a victory for the people of Ontario. It verifies the truth of what happened at Caledonia: the police abandoned their duty to the people of the province, and were at the very least permitted to do so by a weak premier and a government desperate to avoid a contentious, potentially politically damaging clash with aboriginal protesters. More likely still is that the OPP abandoned their duty not with the government’s mere acceptance, but in fact, under its orders.

No one wanted bloodshed in Caledonia. But the government’s claim that the OPP was “keeping the peace” — McGuinty used those exact words in a meeting with the National Post editorial board — doesn’t hold water. The police keep the peace by enforcing the law, equally and neutrally, without concern for matters of race and political sensitivities. If they are not able to do so, because the situation is too dangerous — in other words, if there’s no peace to keep — the police can request help, via the provincial government, from the Armed Forces. It’s called Aid to the Civil Power and is (for obvious reasons) rarely used in Canada — there’s little need. But the option exists for those dire situations where the police are literally unable to enforce the law because civil order has broken down. That didn’t happen in Caledonia. What was the OPP so afraid of? Why couldn’t police enforce the law?

The people of Caledonia spent more than a year knowing they were effectively defenceless. The police did nothing when citizens were harassed by protesters. They did nothing when an electrical transformer station was torched, leaving thousands without power. They even did nothing when fellow police officers were assaulted by the mob. But non-aboriginal citizens remained subject to the law and, in the case of Fleming, could even be injured and arrested without breaking it. This remains a black mark on the reputation of both the OPP and the former premier and his party.

And it has absolutely established a precedent in Ontario: in 2013, another Ontario Superior Court judge issued a rare, public rebuke to the police for refusing to enforce a court order to end an aboriginal blockade of a railway. “We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions,” Justice David Brown wrote.

Dangerous waters indeed. Hopefully Randy Flemming’s victory in the court will help reverse this slow slide into lawlessness that began under Dalton McGuinty’s watch, and continues, sadly, to this day.

Critics of the Ontario Provincial Police and the Dalton McGuinty government have long maintained that the OPP presided over "two-tier" justice during the Caledonia land dispute standoff in 2009.

Anyone with even cursory knowledge of the events of those days would be hard pressed to deny that, and it's even harder today now that an Ontario Superior Court judge has found it is the case. It's a shocking finding, even though it's hardly surprising. It flows out of a civil case brought by Randy Fleming, a civilian who sustained injuries, including permanent damage to nerves and his left elbow when he was tackled and pinned down by OPP officers for the crime of peacefully carrying a Canadian flag down the main street near the Douglas Creek Estates protest site.

Fleming was eventually charged with obstructing an officer — a ludicrous charge since police instigated the confrontation, not Fleming. The charges were eventually dropped, after which he sued the OPP and was eventually awarded about $300,000.

The OPP, and McGuinty himself, defended their actions in this case and in general around Caledonia, by saying police were only trying to keep the peace. That was a suspect claim at the time and it's even more so after the judge's decision, which said, among other things, that the OPP in Fleming's case had been "heavy-handed" and that the evidence presented by some officers was not credible.

In short, the judge said Fleming did nothing wrong. No aboriginal protesters were a threat. The only party that acted aggressively, resulting in Fleming's injury and forceful arrest, was the OPP.

This episode is a microcosm. Native protesters were allowed to break the law, sometimes violently, while non-native protesters were treated to the iron fist of the police. Citizens of Caledonia were denied their right to equal protection under the law.

And for what? Clearly, the OPP and the provincial government were anxious to avoid another Ipperwash, the 1995 standoff in which protester Dudley George was killed by police as he walked toward them with a stick in his hand. But in their efforts to do that, they violated the trust of Caledonia residents and left a black mark on the reputation of the OPP.

No one knows for sure the extent to which the provincial government may have driven OPP strategy in Caledonia, but there remains to this day the widely-held view that the police were following orders from Queen's Park, just as what happened with the police at Ipperwash taking direction from the Harris government of the day. If that's true, the sin is magnified.

Chances are, we will have another DCE situation at some point. When that happens, it's imperative this not be repeated. Law and order unevenly applied is not law and order, it's persecution.

Supreme Court to hear case exploring police use of force in Caledonia, Ont.

OTTAWA — The Supreme Court of Canada says it will hear a case involving a man who sued the Ontario Provincial Police and claimed permanent injury after a struggle in Caledonia, Ont. in 2009.

Randy Fleming says he was walking down a street with Canadian flags near lands occupied by Indigenous protesters with the intention of joining a counter-protest to the occupation of a development known as Douglas Creek Estates.

A struggle ensued after an officer moved on to the land and arrested Fleming.

A trial judge awarded damages including for false arrest, wrongful imprisonment and a breach of charter rights but a majority of the Ontario Court of Appeal set aside this judgment, ordering a new trial to determine whether excessive force was used during the arrest.

As per its custom the Supreme Court gave no reasons for the decision to hear the appeal.